Part I. General and Administrative Provisions

Rule 1. Preamble

1.1. Repeal of local rules

All local rules of the magistrate courts shall expire effective January 1, 1996. If any magistrate court by action of its chief magistrate proposes to prevent any local rule from expiring pursuant to Rule 1.1 then a proposal to prevent the local rule from expiring must be presented to the Supreme Court for approval 30 days prior to the expiration date as stated in Rule 1.1. Only those rules re-approved by the Supreme Court on or after January 1, 1996, shall remain in effect after that date. Rules timely resubmitted shall remain in effect until action by the Supreme Court.

1.2. Authority to enact local rules which deviate from the Uniform Magistrate Court Rules

(A) The term "local rules" will no longer be used in the context of the Uniform Magistrate Court Rules.

(B) Each magistrate court by action of its chief magistrate, from time to time, may propose to make and amend rules which deviate from the Uniform Magistrate Court Rules, provided such proposals are not inconsistent with general laws, these Uniform Magistrate Court Rules, or any directive of the Supreme Court of Georgia. Any such proposals shall be filed with the clerk of the Supreme Court; proposals so submitted shall take effect 30 days after approval by the Supreme Court. It is the intendment of these rules that rules which deviate from the Uniform Magistrate Court Rules be restricted in scope.

(C) Notwithstanding the expiration of previously approved local rules January 1, 1996, courts may continue to promulgate rules which relate only to internal procedure and do not affect the rights of any party substantially or materially, either to unreasonably delay or deny such rights. These rules, which will be designated "internal operating procedures," do not require the approval of the Supreme Court. "Internal operating procedures," as used in these Uniform Magistrate Court Rules, are defined as rules which relate to case management, administration, and operation of the court or govern programs which relate to filing costs in civil actions, costs in criminal matters, case management, administration, and operation of the court.

(D) Notwithstanding these uniform rules, a chief magistrate may promulgate experimental rules applicable to pilot projects, upon approval of the Supreme Court, adequately advertised to the local bar, with copies to the State Bar of Georgia, not to exceed a period of one year, subject to extension for one additional year upon approval of the Supreme Court. At the end of the second year, any such pilot projects will either be approved by the Supreme Court or will be allowed to sunset. Programs developed under the Alternative Dispute Resolution Rules of the Supreme Court will be approved by the Georgia Commission on Dispute Resolution before attaining permanent status under these rules.

(E) Rules which are approved as deviations from the Uniform Magistrate Court Rules and internal operating procedures of courts shall be published by the judicial circuit in which the rules are effective. Copies must be made available through the clerk of the magistrate court for the county where the rules are effective. Any amendments to deviations from the Uniform Magistrate Court Rules or to internal operating procedures must be published and made available through each magistrate court clerk's office within 15 days of the effective date of the amendment or change.

(F) Internal operating procedures effective in any court must be filed with the Supreme Court even though Supreme Court approval is not needed for these rules.

1.3. Matters of statewide concern

The following rules, to be known as "Uniform Magistrate Court Rules," are to be given statewide application.

1.4. Deviation

These rules are not subject to local deviation except as provided herein. A specific rule may be superseded in a specific action or case or by an order of the court entered in such case explaining the necessity for deviation and served upon the attorneys in the case.

1.5. Amendments

The Council of Magistrate Court Judges shall have a permanent committee to recommend to the Supreme Court such changes and additions to these rules as may from time to time appear necessary or desirable.

The State Bar of Georgia shall receive notice of the proposed changes and additions and be given the opportunity to comment.

1.6. Publication of rules and amendments

These rules and any amendments to these rules shall be published in the advance sheets to the Georgia Reports. Unless otherwise provided, the effective date of any amendment to these rules is the date of publication in the advance sheets to the Georgia Reports.

Rule 2. Definitions

2.1. Judge

The word "judge" as used in these rules refers to any person serving or acting as either a chief magistrate or magistrate in the Magistrate Courts of Georgia.

2.2. Clerk

The word "clerk" as used in these rules refers to the person designated as the clerk and to other members of the staff serving as deputy clerks. The chief magistrate may designate deputy clerks who shall have the same authority as the clerk.

2.3. Party(ies)

The word "party" or "parties" as used in these rules shall include law enforcement officers participating in criminal proceedings and attorney(s) of record unless the context clearly indicates otherwise.

Rule 3. Hours of court operation

The hours of court operation shall be set by the chief magistrate of each court and shall be recorded with the clerk of the magistrate court. Such information shall include the following:

(1) Normal hours and location of court.

(2) Emergency after-hours availability of judges and the names of such judges.

(3) Holidays during which the court will be closed and a plan for the availability of judges on such days.

(4) Days on which the court holds civil and criminal hearings (if not handled on the same day), and the times and locations of such hearing.

Rule 4. Assignment of cases

4.1. Case assignment

If the caseload is such, the chief magistrate shall assign cases among the magistrates.

4.2. Disqualification of judge

If any judge is disqualified by law or judicial requirements from the hearing of any case or other matter, such case or matter shall be referred to the chief magistrate for assignment or disposition.

4.3. Disqualification of chief magistrate

If the chief magistrate is the judge disqualified, such case(s) shall be referred in rotation among the other magistrates in the county. The chief magistrate may provide by general order for the method of rotation and for selection of a court from which to request judicial assistance when all magistrates in a county are disqualified. Such general order shall apply only to cases where the disqualification arises after the date of the general order.

Rule 5. Dockets

5.1. Docket categories

Each magistrate court shall keep a docket for criminal and search warrants, and a separate docket for all civil actions.

5.2. Time of docketing

Actions shall be entered by the clerk, deputy clerk, or magistrate in the proper docket immediately or within a reasonable period after being received in the clerk's office.

Rule 6. Withdrawal of papers from magistrate court

No original papers may be withdrawn from the magistrate court. However, copies of any documents may be obtained by any party or attorney for any party upon payment of copy cost to the clerk.

Rule 7. Duties of attorneys and all parties

7.1. Notification of representation

No attorney shall appear in that capacity before a magistrate court until he has entered an appearance by filing a signed entry of appearance form or by filing a signed pleading in a pending action. An entry of appearance shall state (1) the style and number; (2) the identity of the party for whom the appearance is made; and (3) the name and current office address and telephone number of the attorney; and in criminal cases, the home telephone number of the attorney.

In criminal cases, immediately upon agreeing to represent the defendant in a criminal matter pending in magistrate court, each attorney shall notify the magistrate court orally, followed by written confirmation in conformity with the preceding paragraph.

7.2. Withdrawal of counsel

The entry of an appearance or request for withdrawal by an attorney who is a member or an employee of a law firm or

professional corporation shall relieve the other members or employees of the same law firm or professional corporation from the necessity of filing additional entries of appearance or requests for withdrawal in the same action.

7.3. Notification of previous presentation to another judge

Attorneys and parties shall not present to a judge any matter which has been previously presented to another judge without first advising the second judge of said fact and results of the previous presentation.

Rule 8. Resolution of conflicts - State and federal courts.

(A) An attorney shall not be deemed to have a conflict unless:

(1) The attorney is lead counsel in two or more of the actions affected; and,

(2) The attorney certifies that the matters cannot be adequately handled, and the client's interest adequately protected, by other counsel for the party in the action or by other attorneys in lead counsel's firm; certifies compliance with this rule and has nevertheless been unable to resolve the conflicts; and certifies in the notice a proposed resolution by list of such cases in the order of priority specified by this rule.

(B) When an attorney is scheduled for a day certain by trial calendar, special setting or court order to appear in two or more courts (trial or appellate; state or federal), the attorney shall give prompt written notice as specified in (A) above of the conflict to opposing counsel, to the clerk of each court and to the judge before whom each action is set for hearing (or, to an appropriate judge if there has been no designation of a presiding judge).

The written notice shall contain the attorney's proposed resolution of the appearance conflicts in accordance with the priorities established by this rule and shall set forth the order of cases to be tried with a listing of the date and data required by (B)(1)-(4) as to each case arranged in the order in which the cases should prevail under this rule. In the absence of objection from opposing counsel or the courts affected, the proposed order of conflict resolution shall stand as offered. Should a judge wish to change the order of cases to be tried, such notice shall be given promptly after agreement is reached between the affected judges. Attorneys confronted by such conflicts are expected to give written notice such that it will be received at least seven (7) days prior to the date of conflict. Absent agreement, conflicts shall be promptly resolved by the judge or the clerk of each affected court in accordance with the following order of priorities:

(1) Criminal (felony) actions shall prevail over civil actions;

(2) Jury trials shall prevail over non-jury matters, including trials and administrative proceedings;

(3) Trials shall prevail over appellate arguments, hearings and conferences;

(4) Within each of the above categories only, the action which was first filed shall take precedence.

(C) Conflict resolution shall not require the continuance of the other matter or matters not having priority. In the event any matter listed in the letter notice is disposed of prior to the scheduled time set for any other matter listed or subsequent to the scheduled time set but prior to the end of the calendar, the attorney shall immediately notify all affected parties, including the court affected, of the disposal and shall, absent good cause shown to the court, proceed with the remaining case or cases in which the conflict was resolved by the disposal in the order of priorities as set forth heretofore.

Rule 9. Leaves of absence

Requests for leaves of absence shall be submitted in writing to the presiding magistrate or his or her designee accompanied by a listing of cases by case number, name, and hearing date for which protection is required.

Such request shall be accompanied by an appropriate order for signature if the petition is granted.

The request must be filed at least seven (7) business days prior to the date the requested leave is to commence.

Leave will not be granted merely by stipulation or agreement of parties.

Rule 10. Terms of court

Where statutes or case law of general application in this state require action within term of court, in the magistrate court this shall signify within thirty (30) days; where readiness is required by the next term of court, this shall signify after thirty (30) days.

Rule 11. News media

Unless otherwise provided by rule of the Supreme Court or otherwise ordered by the assigned judge after appropriate hearing (conducted after notice to all parties and counsel of record) and findings, representatives of the print and electronic public media may be present at and unobtrusively make written notes and sketches pertaining to any judicial proceedings in the magistrate courts. However, due to the distractive nature of electronic or photographic equipment, representatives of the public media utilizing such equipment are subject to the following restrictions and conditions:

(A) Persons desiring to broadcast/record/photograph official court proceedings must file a timely written request (form attached as Exhibit "A") with the judge involved prior to the hearing or trial, specifying the particular calendar/case or proceedings for which such coverage is intended; the type equipment to be used in the courtroom; the trial, hearing or proceeding to be covered; and the person responsible for installation and operation of such equipment.

(B) Approval of the judge to broadcast/record/photograph a proceeding, if granted, shall be granted without partiality or preference to any person, news agency, or type of electronic or photographic coverage, who agrees to abide by and conform to these rules, up to the capacity of the space designated therefor in the courtroom. Violation of these rules will be grounds for a reporter/technician to be removed or excluded from the courtroom and held in contempt.

(C) The judge, in his or her discretion, may require pooled coverage which would allow only one still photographer, one television camera and attendant, and one radio or tape recorder outlet and attendant. Photographers, electronic reporters and technicians shall be expected to arrange among themselves pooled coverage if so directed by the judge and to present the judge with a schedule and description of the pooled coverage. If the covering persons cannot agree on such a schedule or arrangement, the judge may, in his or her discretion, designate the schedule and arrangements for pooled coverage.

(D) The positioning and removal of cameras and electronic devices shall be done quietly and, if possible, before or after the court session or during recesses; in no event shall such disturb the proceedings of the court. In every such case, equipment should be in place and ready to operate before the time court is scheduled to be called to order.

(E) Overhead lights in the courtroom shall be switched on and off only by court personnel. No other lights, flashbulbs, flashes or sudden light changes may be used unless the judge approves beforehand.

(F) No adjustment of central audio system shall be made except by persons authorized by the judge. Audio recordings of the court proceedings will be from one source, normally by connection to the court's central audio system. Upon prior approval of the court, other microphones may be added in an unobtrusive manner to the court's public address system.

(G) All television cameras, still cameras and tape recorders shall be assigned to a specific portion of the public area of the courtroom or specially designed access areas, and such equipment will not be permitted to be removed or relocated during the court proceedings.

(H) Still cameras must have quiet functioning shutters and advancers. Movie and television cameras and broadcasting and recording devices must be quiet running. If any equipment is determined by the judge to be of such noise as to be distractive to the court proceedings, then such equipment can be excluded from the courtroom by the judge.

(I) Reporters, photographers, and technicians must have and produce upon request of court officials credentials identifying them and the media company for which they work.

(J) Court proceedings shall not be interrupted by a reporter or technician with a technical or an equipment problem.

(K) Reporters, photographers, and technicians should do everything possible to avoid attracting attention to themselves. Reporters, photographers, and technicians will be accorded full right of access to court proceedings for obtaining public information within the requirements of due process of law, so long as it is done without detracting from the dignity and decorum of the court.

(L) Other than as permitted by these rules and guidelines, there will be no photographing, radio or television broadcasting, including video taping pertaining to any judicial proceedings on the floor where the trial, hearing or proceeding is being held or any other floor whereon is located a courtroom, whether or not the court is actually in session.

(M) No interviews pertaining to a particular judicial proceeding will be conducted in the courtroom except with the permission of the judge.

Rule 12. Completion of quarterly caseload reports

In order to compile accurate data on the operation of the magistrate courts, each chief magistrate shall insure the accurate completion and timely submission of the Quarterly Caseload Reports sent to them by the Administrative Office of the Courts.

Rule 13. Notice of selection of magistrates, constables and clerks of magistrate court

Whenever a magistrate, constable, or clerk (but not deputy clerks) of the magistrate court shall take the oath required for office in O.C.G.A. 15-10-3, the clerk of the superior court shall forward to the Administrative Office of the Courts the name and title of the person taking the oath; the name of the person being succeeded; the term of office, if appropriate; the date assuming duties; and the address and telephone number the official wishes to use for business correspondence.

Rule 14. AT&T Language Line Service

The AT&T Language Line Service is authorized for use in the magistrate courts whenever interpreting is needed in criminal and civil proceedings.

Part II. Criminal Rules

Rule 21. Administration of oaths

A clerk of the magistrate court may administer the oath and sign the jurat for affidavits, including those in support of arrest and search warrants and bad check citations. This rule shall not be interpreted as otherwise affecting the responsibilities of a judge in hearing applications for arrest and search warrants.

Rule 22. Hearings on issuance of search warrants

Whenever the hearing on the issuance of a search warrant is not recorded, the magistrate should make a written notation or memorandum of any oral testimony which is not included in the affidavit.

Rule 23. Bail in criminal cases

23.1. Misdemeanor cases

Bail in misdemeanor cases shall be set as provided in O.C.G.A. 17-6-1 and 17-6-2.

23.2. Felony cases

Bail in felony cases shall be set by the magistrate court except for those offenses as to which O.C.G.A. 17-6-1 or 17-10-1 provides that bail shall be set by the superior court or shall not be available. All defendants in custody must be transported and presented to this court for initial appearance within the time requirements of O.C.G.A. 17-4-26 and 17-4-62 for further consideration of bail.

23.3. Categories of bail

The court may set bail which may be secured by:

(1) Cash by a deposit with the sheriff of an amount equal to the required cash bail; or

(2) Property by real estate located within the State of Georgia with unencumbered equity, not exempted, owned by the accused or surety, valued at double the amount of bail set in the bond; or

(3) Recognizance in the discretion of the court;

(4) Professional by a professional bail bondsman authorized by the sheriff and in compliance with the rules and regulations for execution of a surety bail bond.

Bail may be conditioned upon such other specified and reasonable conditions as the court may consider just and proper. The court may restrict the type of security permitted for the bond although the sheriff shall determine what sureties are acceptable when surety bond is permitted.

23.4. Amendment of bail

The magistrate court has the authority to amend any bail previously authorized by the magistrate court under the provisions of O.C.G.A. 17-6-18.

Rule 24. Dismissal and return of warrants

24.1. Dismissal of warrant

Any dismissal of a warrant of the magistrate court prior to the committal hearing and subsequent transfer to other courts shall be made exclusively by the magistrate court.

24.2. Return of warrant to magistrate court

Once arrest of the defendant is effectuated, the original warrant shall be returned to the magistrate court or its designee for transfer to the appropriate prosecuting agency.

24.3. Assessment of costs - Criminal

When, in a criminal action, costs are assessed by the Court upon the dismissal of a warrant the minimum amounts shall be $100.00 in felony cases and $50.00 in misdemeanor cases. Pursuant to O.C.G.A. 17-11-4(a)(3), where prosecution of a criminal action is abandoned before trial, the prosecuting attorney of the trial court or his or her designee shall promptly notify the judge who issued the warrant of the fact of abandonment and of the amount of accrued costs. The judge shall enter a judgment for said costs against the prosecuting party.

Rule 25. Initial appearance/committal hearings

25.1. Initial appearance hearing

Immediately following any arrest but no later than 48 hours if the arrest was without a warrant, or 72 hours following an arrest with a warrant, unless the accused has made bond in the meantime, the arresting officer or the law officer having custody of the accused shall present the accused in person before a magistrate or other judicial officer for first appearance.

At the first appearance, the judicial officer shall:

(1) Inform the accused of the charges;

(2) Inform the accused of the right to the presence and advice of an attorney, either retained or appointed, of the right to remain silent, and that any statement made may be used against him or her;

(3) Determine whether or not the accused desires and is in need of an appointed attorney and, if appropriate, advise the accused of the necessity for filing a written application;

(4) Inform the accused of the right to a pre-indictment commitment hearing, that the hearing will be postponed if the accused requests additional time to prepare its case, and inform the accused that giving a bond returnable to arraignment or trial shall be a waiver of the right to a commitment hearing although a magistrate may in his or her discretion hold a commitment hearing pursuant to Rule 13.2(A);

(5) Schedule a commitment hearing if authorized and if requested by the defendant and so notify the prosecuting attorney and the law officer having custody of the accused;

(6) In cases of warrantless arrest, unless a subsequent determination of probable cause has been made, make a fair and independent determination of probable cause for the arrest;

(7) Inform the accused of the right to grand jury indictment in felony cases, to accusation in misdemeanor cases, to uniform traffic citation in traffic cases, and the right to trial by jury, and, in felony cases, when the next grand jury will convene; in felony cases subject to O.C.G.A. 17-7-70.1 (involving violations of O.C.G.A. 16-8-2, 16-8-14, 16-8-18, 16-9-1, 16-9-2, 16-9-20, 16-9-31, 16-9-33, 16-9-37, 16-10-52, or 40-5-58), inform the accused that if the commitment hearing is expressly waived or the accused is bound over after the commitment hearing, the district attorney may prepare an accusation or seek an indictment;

(8) Inform the accused that the accused or his or her attorney may waive the right to a commitment hearing; and

(9) Set the amount of bail if the offense is not one bailable only by a superior court judge, or so inform the accused if it is.

25.2. Probable cause hearing

A. A magistrate, in his or her discretion, may hold a commitment hearing even though the defendant has posted a bail bond as provided in Rule 11.3.

B. At the commitment hearing by the court of inquiry, the judicial officer shall perform the following duties:

(1) Explain the probable cause purpose of the hearing;

(2) Repeat to the accused the rights explained at the first appearance;

(3) Determine whether the accused waives the commitment hearing;

(4) If the accused waives the hearing, the court shall immediately bind the entire case over to the court having jurisdiction of the most serious offense charged;

(5) If the accused does not waive the hearing, the court shall immediately proceed to conduct the commitment hearing unless, for good cause shown, the hearing is continued to a later scheduled date;

(6) The judicial officer shall bind the entire case over to the court having jurisdiction of the most serious offense for which probable cause has been shown by sufficient evidence and dismiss any charge for which probable cause has not been shown;

(7) On each case which is bound over, a memorandum of the commitment shall be entered on the warrant by the judicial officer. The warrant, bail bond, and all other papers pertaining to the case shall be forwarded to the clerk of the appropriate court having jurisdiction over the offense for delivery to the prosecuting attorney. Each bail bond shall contain the full name, residence, business and mailing address and telephone number of the accused and any surety;

(8) A copy of the record of any testimony and the proceedings of the first appearance and the commitment hearing, if available, shall be provided to the proper prosecuting officer and to the accused upon payment of the reasonable cost for preparation of the record;

(9) A judicial officer, conducting a commitment hearing, is without jurisdiction to make final disposition of the case or cases at the hearing by imposing any fine or punishment, except where the only charge arising out of the transaction at issue is the violation of a county or state authority ordinance.

C. At the commitment hearing, the following procedures shall be utilized:

(1) The rules of evidence shall apply except that hearsay may be allowed;

(2) The prosecuting entity shall have the burden of proving probable cause; and may be represented by a law enforcement officer, a district attorney, a solicitor, a private attorney or otherwise as is customary in that court;

(3) The accused may be represented by an attorney or may appear pro se; and

(4) The accused shall be permitted to introduce evidence.

Part III. Civil Rules

Rule 31. Designated agent for civil actions

Any full-time officer or employee of a corporation, sole proprietorship, partnership or unincorporated association may be designated by such entity as agent for purposes of representing it in civil actions to which it is a party in magistrate court.

An action on behalf of a corporation, sole proprietorship, partnership, or unincorporated association, except affidavits in attachment, may be filed and presented by such designated agent.

Rule 32. Filing of civil actions by mail

Civil actions may be filed in magistrate court by mail providing such an action is properly verified by a notary or other attesting official. No magistrate court shall refuse to accept such mail filings.

Rule 33. Computing answer dates in civil actions

Except as otherwise provided by time period computations prescribed by statute, to compute the date an answer is due in civil actions, begin counting on the day following the day of service and count the number of days. If the last day falls on a Saturday, Sunday, or legal holiday, then the next regular business day becomes the day the answer is due. When the period of time is less than seven [7] days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

Rule 34. Oral answer to civil actions

Oral answers and counterclaims, if any, to civil actions must be given in person to the judge/clerk of the magistrate court. The clerk or judge shall reduce such answer to writing, have the defendant sign it and then file it with other papers in the case.

Rule 35. Objections to process, jurisdiction or venue

Objections to sufficiency of process, service of process, personal jurisdiction or venue must be raised at the time of filing the answer or are waived. Where a valid objection to personal jurisdiction or venue was not raised when the answer was filed and thus is waived, the court may nevertheless in the interest of justice transfer the case to another Georgia court having jurisdiction if the present court is an inconvenient forum and the transfer would not unduly prejudice the opposing party. Objections to subject matter jurisdiction are never waived.

No special formula shall be required to raise an issue of jurisdiction or venue. In addition to answers explicitly raising the issue of lack of jurisdiction or venue, any motion to transfer or answer stating that the action was filed in the wrong court or asking that the case be transferred to another court, or words to that effect, shall be sufficient to raise an objection to jurisdiction or venue.

Rule 36. Transfer/change of venue

In all cases where it is determined by the court that the court in which a case is pending lacks jurisdiction, or venue, or both, that court shall transfer the case in accordance with Article VI, Sec. 1, Paragraph 8, of the 1983 Constitution of the State of Georgia, or where this rule is not applicable, dismiss said case without prejudice.

36.1. Lack of jurisdiction over counterclaim

Where the defendant asserts a legally sufficient counterclaim in good faith which is beyond the jurisdiction of the magistrate court but the entire case is within the jurisdiction of another Georgia court, the court shall transfer the case to a court with jurisdiction over the counterclaim. Where the parties agree on a transferee court with jurisdiction over the counterclaim, the court shall transfer the case to that court. Otherwise, the court shall select a proper court to which to transfer the case.

36.2. Transfer between magistrate courts

Upon a judicial determination that the court lacks venue, the court shall transfer the case by written order to a magistrate court of proper venue. No court shall refuse to accept a transfer accompanied by the fees provided by paragraph 36.3. If it is later determined that the transferee court has no jurisdiction or venue to hear the case, it may in turn transfer the action pursuant to this rule.

36.3. Costs for transfers between magistrate courts

A. The case shall be transferred with the initial filing fee, and the transferred filing fee shall be the filing fee in the transferee court. All surcharges, such as for local law library funds, retirement funds, and the like shall be retained and reported in the court of initial filing. No additional filing costs shall be required by the transferee court, no surcharges will be collected from the parties or be required to be paid by the transferee court, nor shall any refund be made to the parties if the filing fee is less in the transferee court.

B. If service upon the defendant has not been perfected, a service fee in the amount provided for in O.C.G.A. 15-16-21(b)(1) for the transferee court shall be paid by the plaintiff prior to the transfer. If a service attempt (beyond a check of map, data base or index of addresses) has been made in the court where the action was originally filed, the original service fee shall be considered as expended and the entire service fee shall be billed to the plaintiff. If no service has been attempted, the plaintiff shall only be billed for the difference between the service fee originally paid and that required by this rule. A bill for the required service fee shall be sent to the plaintiff by regular mail and the case may be dismissed without prejudice for want of prosecution if the bill is not paid within thirty (30) days.

The service fee provided in O.C.G.A. 15-16-21(b)(1) shall be the service fee in all transferred cases irrespective of whether the transferee court uses sheriff, marshal, or constable as the office for service of process in that county. The parties shall not be entitled to any refund of a portion of the fee.

36.4. Hearing transfer requests

A. Where the defendant has not been served, the court may entertain a motion to transfer ex parte, either orally or upon written request and need not require a hearing.

B. Where the opposing party consents to a transfer, the court need not require a hearing. No transfer shall be made upon consent of the parties where no authorized factual grounds for transfer are asserted; however, the court may accept without further proof the factual assertions where the request is made by consent.

C. Where the defendant has been served and there is no consent to the request for transfer, the court may decide the request at the hearing regularly set in that case. Alternately, the court may, after reviewing the legal sufficiency of the request, notify the opposing party that the request will be granted unless a hearing is requested within ten days. Such notice shall be sent by regular mail to the address shown on the pleadings.

D. The transfer order shall not be entered until any required service fee is paid. The court shall transfer the case within 10 days of the entry of the order.

E. If an order allowing the plaintiff to proceed in forma pauperis has been entered in the court where the action was originally filed, it shall be honored in the transferee court unless and until successfully challenged by an opposing party.

Rule 37. Amendments

Amendments to pleadings in the magistrate court may be filed without leave of court. If the court finds that the opposite party is surprised and not prepared to go forward due to the lateness of notice of the amendment despite due diligence, the court shall continue the case. When the amending party has been negligent or dilatory in filing an amendment, the court may condition consideration of the amendment upon the payment of all or part of the costs to the opposing party attributable to the continuance of the case. The amending party may then elect to proceed immediately to trial in the magistrate court without consideration of the amendment or agree to pay the costs assessed by the court. Upon failure to pay those costs, the court may impose a default judgment or may hear the case on the merits and assess those costs as part of the final judgment.

Amendments filed at or prior to the hearing in the magistrate court shall be part of the pleadings upon de novo appeal even where such amendment was not considered in the magistrate court.

Rule 38. Motions and request for relief under the Civil Practice Act

No party or attorney shall be required to respond to a motion, including a request for relief under the Civil Practice Act (O.C.G.A. 9-11-1 et. seq.) prior to a scheduled hearing unless otherwise directed by the court. Unless otherwise provided by the court, pre-judgment motions shall be ruled on at the first scheduled hearing for the case. Where a party contends that the grant or denial of the motion may require postponement of the hearing on the merits, the motion should so state. Post-judgment motions may be placed on a calendar for hearing. Motions may be denied without a hearing based upon the record of the court. Motions shall not be granted without a hearing unless hearing is waived by the respondent.

Parties and attorneys are reminded that the Georgia Civil Practice Act does not govern proceedings in Magistrate Court. Except as otherwise provided in these rules, any request for relief under that act will be considered under the standards of Howe v. Roberts, 259 Ga. 617 (1989).

No leave of court is required to file a suggestion, on the record, of death of a party.

Rule 39. Third-party practice

A defendant may file with the answer a statement of claim against a person who is not a party to the action who is or may be liable for all or part of the plaintiff's claim. All claims arising out of the same transaction or occurrence as the plaintiff's claim may be asserted. After the answer is filed, third-party claims may only be filed with permission of the court. A plaintiff defending a counterclaim may also file such a third-party claim with permission of the court. The procedures applicable to any other action shall apply to a statement of claim filed against a third party defendant and the hearing on the entire case shall be set pursuant to O.C.G.A. 15-10-43 calculating time limits from the day of the third-party defendant's answer.

The third party defendant may assert a claim arising out of the same transaction or occurrence at the time of filing the answer against any other party to the action and may assert such related claims against non-parties with permission of the court. Existing parties other than the third-party plaintiff may file claims against the third party defendant arising out of the same transaction or occurrence as the original action any time before the third-party defendant's answer is due.

Rule 40. Pre-trial discovery

Use of O.C.G.A. 9-11-26 through 9-11-37 for purposes of pre-trial discovery in the magistrate court is not favored; however, requests for such discovery may be entertained when made by joint request of all parties. Requests for use of these provisions may also be allowed for preservation of testimony, obtaining evidence from out-of-state, minimizing expense and similar purposes in order to do substantial justice or lessen the expense to the parties.

No party or attorney may file any discovery request pursuant to O.C.G.A. 9-11-26 through 9-11-37 without permission of the court; any such filing shall be a nullity.

Where discovery is permitted by the magistrate court, the magistrate may nevertheless decline to rule on a motion pursuant to O.C.G.A. 9-11-37 in which case such motion may be renewed upon de novo appeal.

Rule 41. Summary judgment

Summary judgment motions in the magistrate court shall not be permitted and their filing shall be a nullity.

Rule 42. Bankruptcy stay

A party or attorney may file a signed notice of bankruptcy proceedings containing the bankruptcy case number; where the debtor in the bankruptcy case is the same as a party in the magistrate court, such a notice will stay proceedings in the magistrate court until further order of the court. Parties are encouraged to attach a copy of the first page of their bankruptcy filing to the notice. On the court's own motion, a judge or clerk may attempt to verify the filing with the U.S. Bankruptcy Court (which may be by telephone inquiry) and notify the parties to proceed with the case upon lack of verification.

Parties desiring to challenge the authenticity, scope, or continued duration of a bankruptcy stay shall file a written motion or request which shall be set for hearing before a magistrate.

Rule 43. Consent judgments in civil actions

Consent judgments must be reduced to writing, signed by the defendant and his or her attorney, if any, and filed with other papers in the case. If the consent judgment is for less than the amount of the claim as filed, then the plaintiff and his or her attorney, if any, shall also sign such consent judgment.

Rule 44. Deferred partial payments of judgments by defendants

44.1. Clerical and accounting costs due

Where plaintiff does not request partial payments be made to the court but the defendant requests to make such partial payments to the court rather than to the plaintiff, the judge may do so at the expense of the defendant and for the clerical and accounting costs incurred thereby, may charge 10%, but not less than $1.00 and not to exceed $10.00 for each payment.

44.2. Clerical and accounting costs withheld

No clerical and accounting costs shall be deducted from monies received in the magistrate court in answer to a summons of garnishment, levy on property where such property is redeemed prior to public sale, when a defendant pays a claim in full, or when a defendant pays rent into court on a dispossessory action.

Rule 45. Satisfaction of fi. fa

Upon sufficient showing, the judge or clerk shall indicate on the face of the fi. fa. that it has been satisfied, if such payment is made prior to public sale.

.